Dubious Counsel

FOR MORE THAN A YEAR, MARYANNE Phillips had been both dreading and anticipating this moment. Now, finally, in a Mineola, N.Y., courtroom, she was face-to-face with Colin Ferguson, the man she says sat next to her on the Long Island Rail Road's 5:33 to Hicksville on Dec. 7, 1993, and shot her in the chest before killing six of her fellow passengers and wounding 18 others. But her hoped-for moment of truth turned out to be an exercise in the surreal. Rather than sitting at the defense table, Ferguson, 36, who is acting as his own attorney, stood at a lectern, grilling her like some amateur Perry Mason—except that much of what he said made no sense. Still, Phillips, 40, held her own, answering each mystifying question in a steady voice. "It felt wonderful to face him," says the NYNEX telephone-company business representative, who has required four operations so far and only recently returned to her job. "I have been waiting a year for justice to be done."

Yet there are many who wonder whether what is taking place in Mineola truly serves justice. Last November, Ferguson decided he wanted no part of the "black rage" defense being prepared for him by lawyers Ronald Kuby and William Kunstler—basically a contention that he had been driven to murder by the effects of white racism. After being found competent to stand trial by Nassau County Court Judge Donald Belfi, he took over the case himself, insisting in his opening statement that he simply wasn't the killer. He said he had his 9-mm pistol with him in a black tote bag, and that as he had dozed on the LIRR train out of New York City's Penn Station, a white man took the gun and began shooting. The story might be more convincing if Ferguson had not been forcibly disarmed by fellow passengers and if prosecutors did not have 41 witnesses, including several victims, who will identify him as the gunman. "He's passionate and sincere," says Kuby, who was banned from the courtroom by his former client on Jan. 30. "But it's the theater of the insane."

The star of this odd drama is, of course, Ferguson, who is delighting in his own histrionics. His sense of drama, though, is sometimes bewildering, as when he held up the train ticket he had purchased on Dec. 7 and asked a detective, "Does this indicate anything about murder?" At one point he asked the court—in vain—to subpoena President Clinton and former New York Gov. Mario Cuomo. Another time, he protested heatedly that corrections officers had deliberately taken the cheese from his bologna-and-cheese sandwich. Strangest of all may have been his opening statement. Ferguson maintained that he had been charged with 93 counts of murder, attempted murder, assault and weapons possession "only because it matches the year 1993. Had it been 1925, it would have been 25 counts."

Obviously, says Kuby, Ferguson should not be representing himself. "We allow an insane man to represent himself in a sham legal proceeding," he says. "We should be ashamed of ourselves and our legal system." Kuby even speculates that Ferguson might defend himself so inadequately that an appellate court could be persuaded to reverse a guilty verdict. Stephen Gillers, a New York University law professor, disagrees. "If you're determined to be competent, and you insist foolishly on representing yourself and you make a lot of mistakes," he said, "you have to accept responsibility for the consequences of your errors." In any case, there is no evidence that Ferguson is trying to throw the case and win on appeal. "He still thinks he has a chance to be acquitted," says frustrated attorney Alton Rose, who is now acting as one of Ferguson's advisers. "He thinks he's doing a good job."

Ferguson has apparently never suffered from a low opinion of his abilities. Born into a well-to-do family in Kingston, Jamaica, where his father was a pharmaceuticals-company director, he was an excellent student with great expectations. After emigrating to the U.S. in 1982, however, he began chafing in the mundane jobs he was able to find, such as liquor-store clerk and bank teller. The fact is, he could not hold a job or, for that matter, his temper. In 1989 a routine automobile accident turned into a contretemps with the police. The following year he enrolled at Adelphi University in Garden City, N.Y., but he was eventually suspended after badgering both students and professors, often around issues concerning race.

In court, Ferguson's showboating has exasperated the families of those who survived his alleged shooting spree. "He's so aggravating," says Susann Blum, 40, wife of Kevin Blum, one of three men who grabbed Ferguson in the railroad car and restrained him until police arrived. "He's so arrogant, and it's got to make it so much worse." Yet for many of the victims, the courtroom has been surprisingly therapeutic. "It is the best thing," says Carolyn McCarthy, whose husband, Dennis, was killed in the shooting, and whose son Kevin, 27, a trainee at Prudential Securities, was shot twice, leaving him paralyzed in his left arm and lower leg. "Kevin wants to face Colin Ferguson. He wants to gain back some control."

Jack and Arlene Locicero, whose daughter Amy Federici, 27, was shot fatally in the neck (her family donated her heart, kidneys and liver for transplantation), attended opening statements with Amy's sister Carrie, 23. "It's important that as a family we're there," says Carrie, "because Amy couldn't be there." Her real concern now, says Arlene, a high school teacher, is for the victims who survived. "My heart goes out to them," she says. "Their wounds are hardly only physical. They've shown great courage." Whatever frustration these people may feel at the inexplicable antics of Colin Ferguson, they may at least find some much-needed closure. "The last year has taken its toll on all of us," says Carolyn McCarthy. "It has been never ending. Now we see the end coming."